Association of Civilian Technicians, Old Hickory Chapter and U.S. Department of Defense, North Carolina National Guard Bureau, Raleigh, North Carolina (Authority decision, September 23, 1999)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority in a negotiability proceeding. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

The Association of Civilian Technicians, Old Hickory Chapter, sought official time to lobby Congress about pending or desired legislation affecting represented employees. The Authority upheld the agency head's disapproval because the provision conflicted with the 1998 Defense Appropriations Act's restriction on using funds to influence pending legislation. It rejected the argument that paid official time should be treated like annual leave and found that the general official-time statute did not override the targeted funding restriction. The Authority dismissed the petition and declined to advise whether removing the word pending would change the result. Member Wasserman dissented and would have required the agency head to withdraw the disapproval.

Decision snapshot

• Authority: 5 U.S.C. §§ 7114(c) and 7131(d); section 8012 of the 1998 Defense Appropriations Act.
• Outcome: Disapproval upheld and petition dismissed; one other provision had been withdrawn.
• Key point: Official time differs from annual leave because it pays for specifically authorized representational activities.

Full text (FLRA public release)

[ v55 p811 ]

55 FLRA No. 139

ASSOCIATION OF CIVILIAN TECHNICIANS

OLD HICKORY CHAPTER

(Union)

and

U.S. DEPARTMENT OF DEFENSE

NORTH CAROLINA NATIONAL GUARD BUREAU

RALEIGH, NORTH CAROLINA

(Agency)

0-NG-2457

_____

DECISION AND ORDER ON A

NEGOTIABILITY ISSUE

September 23, 1999

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S.

Wasserman and Dale Cabaniss, Members. [n1]

I. Statement of the Case

This case is before the Authority on a petition for review of a negotiability issue filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The petition for review contained two provisions that were disapproved by the Agency head under section 7114(c) of the Statute.

Pursuant to section 7105 of the Statute, the Authority transferred the case to the Chief Administrative Law Judge for assignment to an administrative law judge (Judge) for factfinding with respect to one of the provisions. After the Union withdrew its petition for review as to that provision, the Judge referred the case back to the Authority for a decision on the second provision, which would allow Union officials to lobby Congress on official time.

For the reasons explained below, we find that the provision is contrary to law. Accordingly, pursuant to section 2424.10 of the Authority's Regulations, we dismiss the petition for review. [n2]

II. The Provision

Association Officers will be granted reasonable official time to represent the bargaining unit by visiting, phon[ing], and writing to elected representatives in support of or opposition to pending or desired legislation which would impact the working conditions of the employee's [sic] represented by the Association.

III. Positions of the Parties

A. Agency

According to the Agency, the provision is contrary to sections 8001 and 8012 of the 1998 Department of Defense Appropriations Act, Pub. L. No. 105-56, 111 Stat. 1203, 1219, 1222 (1998). [n3] In this respect, the Agency asserts that the Authority held correctly in Office of the Adjutant General, New Hampshire National Guard, Concord, New Hampshire, 54 FLRA 301 (1998) (Member Wasserman dissenting) (New Hampshire National Guard), aff'd sub nom. Granite State Chapter, Association of Civilian Technicians v. FLRA, 173 F.3d 25 (1st Cir. 1999) (Granite State Chapter v. FLRA), that "[t]he use of official time by union representatives for lobbying activities is prohibited by recurring provisions in the yearly Department of Defense Appropriations Act[.]" Statement of Position at 3. [ v55 p812 ]

The Agency also contends that the provision is contrary to 18 U.S.C. § 1913. [n4] The Agency asserts, in this regard, that the Authority erred when it held in National Federation of Federal Employees, Local 122 and U.S. Department of Veterans Affairs, Regional Office, Atlanta, Georgia, 47 FLRA 1118 (1993), that a proposal permitting unions to lobby Congress while on official time was not contrary to section 1913 because sections 7102 and 7131(d) of the Statute permit union officials to represent their members before Congress. According to the Agency, use of the funds in violation of section 1913 would violate 31 U.S.C. § 1301(a), and as a result, "could cause a violation" of 31 U.S.C. § 1341, the Anti-Deficiency Act. [n5] Statement of Position at 3.

B. Union [n6]

The Union asserts that the Authority incorrectly concluded in both New Hampshire National Guard and Headquarters, National Guard Bureau, Washington, D.C., Nevada Air National Guard, Reno, Nevada, 54 FLRA 316 (1998) (Member Wasserman dissenting) (Nevada Air National Guard), petition for review filed sub nom. Silver Barons v. FLRA, No. 98-70838 (9th Cir. July 24, 1998), that lobbying Congress on official time constitutes the use of appropriated funds to lobby Congress. According to the Union, a determination whether a union official may lobby Congress consistent with the Defense Appropriation Lobbying Statute "depends not on whether the employee receives federal pay during that time, but on whether the employee is on duty during that time, and thus under an obligation to act solely in official capacity on behalf of the employer." Union Response at 2 (emphasis in the original). The Union maintains that because official time, like annual leave, does not constitute duty time, proposals permitting Union representatives to lobby Congress on official time are not contrary to the Defense Appropriation Lobbying Statute. In this respect, the Union argues that sections 7102 and 7131(d) of the Statute "can be harmonized with the prohibition against use of federal funds for lobbying by construing 'use of federal funds' as not including mere 'use of non-duty time.'" Id. at 3.

The Union also asserts that, if the Authority finds that the provision is contrary to the Defense Appropriation Lobbying Statute on this basis, then the Authority should conclude that the section 7131(d) "right to official time" for lobbying "prevail[s]" over the prohibition against lobbying contained in the Defense Appropriation Lobbying Statute. Id. at 4 (citation omitted). The Union maintains that section 7131(d) prevails over the Defense Appropriation Lobbying Statute because section 7131(d) is more specific than the Defense Appropriation Lobbying Statute.

IV. Meaning of the Provision

There is no dispute regarding the meaning of the provision. The provision would require the Agency to grant Union representatives "reasonable" amounts of official time in order to lobby Congress regarding pending or desired legislation.

V. Analysis and Conclusions

The Authority has held that a proposal to grant official time for lobbying activities that include "pending legislation" is inconsistent with the plain wording of the Defense Appropriation Lobbying Statute. See, e.g., Nevada Air National Guard, 54 FLRA at 324-25; New Hampshire National Guard, 54 FLRA at 310-11; and Office of the Adjutant General, Georgia Department of Defense, Atlanta, Georgia, 54 FLRA 654, 665-66 (1998) (Member Wasserman dissenting) (Georgia Department of Defense), aff'd on other grounds sub nom. Georgia State Chapter, Association of Civilian Technicians v. FLRA, No. 98-1452 (D.C. Cir. Aug. 3, 1999). As a result, the Authority concluded that the proposals at issue in the cited cases were outside the duty to bargain because they were contrary to law. See, e.g., New Hampshire National Guard, 54 FLRA at 313. Nei- [ v55 p813 ] ther of the two arguments asserted by the Union in this case persuades us to depart from this precedent.

In New Hampshire National Guard, 54 FLRA at 312, the Authority rejected the Union's argument that section 7131(d) should prevail over the Defense Appropriation Lobbying Statute. The Authority stated that the Defense Appropriation Lobbying Statute expressly prohibits the use of appropriations for any purpose intended to influence Congress on pending legislation or appropriations, while section 7131(d), by contrast, authorizes official time for any "matter covered by" the Statute. See id. The Authority concluded, and we affirm here, that the wording of section 7131(d) does not supercede the explicit and targeted prohibition in the Defense Appropriation Lobbying Statute. See id. at 312-13.

The Union's argument that the provision is not contrary to the Defense Appropriation Lobbying Statute because official time, like annual leave, does not constitute duty time, ignores a critical distinction between official time and annual leave.

An employee on official time under section 7131 is permitted to engage in particular activities, designated by the Statute, during the time when the employee otherwise would be in a duty status. The purpose of official time is to permit employees to engage in these activities without loss of pay or leave. The activities that may be performed by employees on official time are restricted in two ways. First, the Statute specifies that only certain activities may be performed on official time: negotiation of a collective bargaining agreement (section 7131(a)), participation in FLRA proceedings (section 7131(c)), and representation in connection with other matters covered by the Statute (section 7131(d)). Second, the Statute prohibits employees from performing other activities --internal union business, including the solicitation of membership, elections of labor organization officials, and collection of dues -- on official time. See 5 U.S.C. § 7131(b).

In contrast, annual leave constitutes payment to an employee for activities already performed by the employee. The purpose of annual leave is to compensate employees for work already performed -- not for activities performed while on annual leave. Indeed, an employee can, upon separation from government employment, receive a lump-sum payment for accrued, but unused, annual leave. See 5 U.S.C. § 5551. While on annual leave, an employee is not subject to the restrictions in section 7131. That is, activities that may not be conducted on official time --such as internal union business -- may be conducted by an employee on annual leave. Cf. New Hampshire National Guard, 173 F.3d at 28 n.3 (court concluded that although the Defense Appropriate Lobbying Statute restricted use of official time, it did not "in any way affect what Union members can do during their annual leave.").

The Union essentially argues that there are only two categories of employee time: duty time and non-duty time. This is mistaken. Section 7131 of the Statute creates a distinct third category of time: official time, when an employee is performing representational functions for the union while receiving compensation from the agency. Unlike regular duty time, an employee's activities on official time are not directed by the agency. Unlike annual leave, an employee's activities on official time are restricted by the Statute. In this connection, we note that both official time and duty time -- unlike non-duty time such as annual leave -- "shall be considered hours of work." 5 C.F.R. § 551.424(b). [n7]

The distinction the Union draws between duty time and non-duty time does not persuade us that the Authority erred in determining that the use of official time to lobby Congress is inconsistent with the Defense Appropriation Lobbying Statute. Nevada Air National Guard; New Hampshire National Guard; and Georgia Department of Defense. Consistent with our precedent, we conclude that the provision is inconsistent with the Defense Appropriation Lobbying Statute and, accordingly, it was properly disapproved by the Agency under section 7114(c) of the Statute. [n8]

VI. Order

The petition for review is dismissed.

File 1: Authority's Decision in 55 FLRA No.
139

File 2: Opinion of Member Wasserman

Footnote # 1 for
55 FLRA No. 139

• Authority's Decision

Member Wasserman's dissenting opinion is set forth at the end of the decision.

Footnote # 2 for
55 FLRA No. 139

• Authority's Decision

This section of the Regulations, which was in effect at the time the Union filed its petition, has been modified and renumbered as section 2423.40 of the recently revised regulations. See 63 Fed. Reg. 66,413 (1998). As the revised regulations apply only to petitions filed after April 1, 1999, we apply the prior regulations in this case.

Footnote # 3 for
55 FLRA No. 139

• Authority's Decision

These sections provide:Sec. 8001.

No part of any appropriation contained in this Act shall be used for publicity or propaganda purposes not authorized by the Congress. Sec. 8012. None of the funds made available by this Act shall be used in any way directly or indirectly to influence congressional action on any legislation or appropriation matters pending before the Congress.

We note, with respect to section 8012, that the Union's argument addresses section 8015 of the 1996 Defense Appropriations Act, Pub. L. No. 104-61, 109 Stat. 636, 654 (1996), on which the Authority based its decision in New Hampshire National Guard. As both section 8012 of the 1998 Act and section 8015 of the 1996 Act are identical, and as section 8012 was in effect at the time the petition was filed with the Authority, we address only section 8012, which we refer to as the "Defense Appropriation Lobbying Statute."

Footnote # 4 for
55 FLRA No. 139

• Authority's Decision

18 U.S.C. § 1913 provides, in pertinent part:

No part of the money appropriated by . . . Congress shall, in the absence of express authorization by Congress, be used directly or indirectly to pay for any personal service . . . or other device, intended or designed to influence in any manner a Member of Congress, to favor or oppose . . . any legislation or appropriation by Congress . . . ; but this shall not prevent officers or employees of the United States . . . from communicating to Members of Congress on the request of any Member or to Congress, through the proper official channels, requests for legislation or appropriations which they deem necessary for the efficient conduct of the public business.

Footnote # 5 for
55 FLRA No. 139

• Authority's Decision

31 U.S.C. § 1301(a) provides that appropriations "shall be applied only to the objects for which the appropriations were made except as otherwise provided by law." 31 U.S.C. § 1341(a)(1) provides, in pertinent part, that an officer of the United States Government may not "make or authorize an expenditure . . . exceeding an amount available in an appropriation or fund for the expenditure
. . . ."

Footnote # 6 for
55 FLRA No. 139

• Authority's Decision

In addition to the arguments described above pertaining to whether the negotiated provision is contrary to law, the Union requests that the Authority "clarify . . . that the contract term at issue would be negotiable if the word 'pending' were removed . . .
." Union Response at 1 (emphasis added). We construe this as a request for an advisory opinion. The Authority does not issue advisory opinions. See 5 C.F.R. § 2429.10. Accordingly, we deny the Union's request. See American Federation of Government Employees, Local 1864 and U.S. Department of the Navy, Charleston Naval Shipyard, Charleston, South Carolina, 45 FLRA 691, 695 (1992).

Footnote # 7 for
55 FLRA No. 139

• Authority's Decision

Compare U.S. Department of Labor, Office of Workers' Compensation Programs, FECA Procedure Manual, Part 2, Claims, 2-0804-16(d) (employees on official time are covered by the Federal Employees' Compensation Act) with Hoopes v. United States, 867 F. Supp. 349 (E.D.N.C. 1994) (employees on annual leave are not covered by the Federal Employees' Compensation Act).

Footnote # 8 for
55 FLRA No. 139

• Authority's Decision

Because we find that the provision is contrary to the Defense Appropriation Lobbying Statute and, thus, was properly disapproved by the Agency, we have not examined the Agency's arguments concerning either section 8001 of the Appropriations Act or 18 U.S.C. § 1913. We note, however, that the Authority has previously found that substantially similar proposals are not contrary to either of these laws. See, e.g., New Hampshire National Guard, 54 FLRA at 306-07, 309.

[ v55 p814 ]

Dissenting Opinion of Member Wasserman:

I disagree with the conclusion reached by my colleagues that the provision at issue is contrary to law. Rather, consistent with my separate opinions in cases involving similar proposals and provisions, I do not think that the disapproved provision in this case conflicts with section 8012 of the 1998 Department of Defense Appropriations Act. [n1] I believe that the language of section 8012 precludes neither agency officials nor union officials from direct contact with Congress. [n2]

More particularly, in New Hampshire National Guard, I found no clear expression of congressional intent in the appropriations law to preclude union officials from having the ability to communicate with Congress, as guaranteed by section 7102, on official time, as guaranteed by section 7131. As no such expression of intent has been advanced here, I disagree with my colleagues' determination that "section 7131(d) does not supercede the explicit and targeted prohibition" in the Appropriations Act. See, slip op. at 6.

I would also reject the other grounds on which the Agency contends that the provision is contrary to law, for the reasons explained in Georgia Department of Defense, 54 FLRA at 662-65, Nevada Air National Guard, 54 FLRA at 324-25, and New Hampshire National Guard, 54 FLRA at 306-09.

In sum, I would find that the provision is not contrary to law and order the Agency head to rescind its disapproval.

File 1: Authority's Decision in 55 FLRA No. 139

File 2: Opinion of Member Wasserman

Footnote # 1 for
55 FLRA No. 139

• Opinion of Member Wasserman

See Office of the Adjutant General, Georgia Department of Defense, Atlanta, Georgia, 54 FLRA 654 (1998) (Georgia Department of Defense), aff'd on other grounds sub nom. Georgia State Chapter, Association of Civilian Technicians v. FLRA, No. 98-1452 (D.C. Cir. Aug. 3, 1999); Headquarters, National Guard Bureau, Washington, D.C., Nevada Air National Guard, Reno, Nevada, 54 FLRA 316 (1998) (Nevada Air National Guard), petition for review filed sub nom. Silver Barons v. FLRA, No. 98-70838 (9th Cir. July 24); and Office of the Adjutant General, New Hampshire National Guard, Concord, New Hampshire, 54 FLRA 301 (1998) (New Hampshire National Guard), aff'd sub nom. Granite State Chapter, Association of Civilian Technicians v. FLRA, 173 F.3d 25 (1st Cir. 1999). The provisions of section 8012 are identical to section 8015 of the 1996 Department of Defense Appropriations Act, which the Authority addressed in the cited cases.

Footnote # 2 for
55 FLRA No. 139

• Opinion of Member Wasserman

Since I would find no inconsistency with section 8012, it is unnecessary to address the Union's claim regarding the use of Federal funds for duty versus non-duty time.